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2009 MarsdenLR 2247
FEDERAL COURT PUTRAJAYA
SK TANGAKALISWARAN KRISHNAN – Appellant
Versus
MENTERI DALAM NEGERI MALAYSIA & ORS – Respondent
[Criminal Appeal No: 05-50-2009(W)]
[1] This is an appeal against the refusal of the High Court to issue habeas corpus for the appellant's release from custody. The relevant facts of the case are these. On 17 November 2008, the Minister for Home Affairs, the first respondent before us, made an order directing the appellant's detention for a period of two years. The order was made pursuant to s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ("the Ordinance) which provides:
4(1) If the Minister is satisfied that with a view to preventing any person from acting in any manner prejudicial to public order it is necessary that that person should be detained, or that it is necessary for the suppression of violence or the prevention of crimes involving violence that that person should be detained, the Minister shall make an order directing that that person be detained for any period not exceeding two years.
[2] Pursuant to sub-s. (4) of the same section, a statutory statement setting out the facts and grounds of his detention (also dated 17 November 2008) was served upon the appellant. On 18 November 2008, the appellant made representations against the making of the order to the Advisory Board constituted under art 151 of the Federal Constitution. Under cl (1)(b) of that article and by virtue of s 6(1) of the Ordinance, the Board must consider the representations and make its recommendations thereon to the Yang di-Pertuan Agong (in truth His Majesty acting on the advice of the Minister) within three months of receiving the representations in question or within such longer period as the Yang di- Pertuan Agong may allow. The Advisory Board entertained the appellant's representations. But it is uncertain as whether it made its recommendations to His Majesty within the constitutionally prescribed three month period which in the present instance expired on 17 February 2009. I will say why in a moment. Returning to the mainstream, the appellant on 17 March 2009 filed an application for an order of habeas corpus which was heard and dismissed by the learned judicial commissioner.
[3] Before us one of the main grounds urged in support of the appeal is that the detention is bad because the Board failed to make its recommendations within the constitutionally and statutorily prescribed three month period; no question of any extension arising in this case. In the alternative it is submitted that at best the burden of showing that the recommendations were made within time had not been discharged by the respondents. This latter submission brings into sharp focus the uncertainty of which I spoke of earlier.
[4] There appears to be a sharp conflict in and between the affidavit evidence produced by the respondents in answer to the appellant's application for habeas corpus. The first respondent in para. 15 of his affidavit dated 31 March 2009 categorically states that the Board had not as at the date of his affidavit made its recommendations to the Yang di-Pertuan Agong. This however is contradicted by the secretary to the Board who in his affidavit of 20 April 2009 states that the Board's recommendations were made to His Majesty on 13 January 2009. It is significant that even after the secretary to the Board had filed his affidavit, no attempt was made to explain the discrepancy in the dates. How then is the issue to be resolved?
[5] In my considered judgment the point at stake falls to be resolved with reference to the principles governing the burden of proof in an application for habeas corpus. It is settled law that on an application for habeas corpus the burden of satisfying the Court that the detention is lawful lies throughout on the detaining authority. See, Chng Suan Tze v. The Minister of Home Affairs & Ors And Other Appeals, [1989] 1 MLJ 69. In Mohinuddin v. District Magistrate, Beed AIR [1987]1977, the Supreme Court of India observed as follows in the context of art 22 of the Indian Constitution from which is drawn our art 1
